Posted on: Monday, April 21, 2003

Lingle continues to seek judiciary influence

By Lynda Arakawa
Advertiser Capitol Bureau

Just months after being elected, Gov. Linda Lingle raised eyebrows by publicly criticizing the Hawai'i Supreme Court, saying lawyers have told her the judiciary is dysfunctional and the court is plagued with problems.

But Lingle's appointment last week of Honolulu attorney James Duffy to the five-member high court may be the only time in her four-year term that she will have a chance to select a member of the high court or the state appeals court.

Lingle, however, will probably continue to encourage the legal community to keep an eye on the judiciary, and she can also make a difference with her appointments to the Judicial Selection Commission, which screens applicants to the state bench, said Randy Roth, her senior policy adviser.

In her speech earlier this month, Lingle told a group of federal judges, magistrates and lawyers she had heard local attorneys complain that the state Supreme Court faces problems such as a backlog of cases, inconsistent rulings and a lack of collegiality among justices.

Chief Justice Ronald Moon did not have any immediate comment, according to spokeswoman Marsha Kitagawa.

Lingle will likely not be able to make any more appointments to the state Supreme Court or the four-member Intermediate Court of Appeals unless the members unexpectedly resign, since justices and judges on those courts have either been recently appointed or recently granted another 10-year-term.

Lingle appointed District Court Judge Rhonda Nishimura to the Honolulu Circuit Court and will make an appointment to the Big Island Circuit Court.

The 10-year terms of 10 Circuit Court judges expire before the next gubernatorial election, but the Supreme Court and the appellate court are especially significant because their rulings have the binding effect of law.

"It's not unusual for the executive branch to try to affect the judiciary," said Richard Miller, professor of law emeritus at the University of Hawai'i.

"I think it's important for the party in power. They want to have as much influence as they can. They want judges who are more likely to uphold their programs and ... strike down legislation they don't like. And that's not unusual, it's expected. The question is how far do they go, what quality of people do they appoint?"

Lingle said she did not consider political party affiliation when she picked Duffy, who has ties to well-known Democrats. Lingle said she wanted to appoint someone who, among other qualities, saw the court's role as interpreting laws rather than creating new laws.

But Miller, who applauded Lingle's appointment of Duffy, said that would be virtually impossible for any justice.

"It's a rare case that does not have some political implications," Miller said. "It can go either in a conservative or a not-conservative way. Now you do want them to follow precedent ... but in many areas they are deciding issues which have never been decided before in this state, so they have a sort of a blank slate."

Roth, a lawyer, cited Lingle's appointments to the Judicial Selection Commission as a way the governor can influence the judiciary. "In theory at least that commission has a role to play in making sure that there is accountability in the judiciary," he said.

The nine-member commission reviews judicial applications and submits a list of nominees for the governor to choose from in making appointments to the benches of the Supreme Court, Intermediate Court of Appeals and Circuit Courts. The chief justice of the Hawai'i Supreme Court, who appoints judges to the District and Family courts, also chooses from a list of nominees from the commission.

The members, who serve staggered six-year terms, also determine whether a justice or judge should be retained for succeeding terms.

Most of the commission members were appointed by Democrats.

Miller and others in the legal community, while praising Lingle's appointment of Duffy, said the six nominees for the high court appeared to come largely from a liberal background. Lingle also spoke of the importance of the Judicial Selection Commission while emphasizing that she is proud to appoint Duffy.

"I would think in the future as we start to get more variety on the Judicial Selection Commission, I do think and I do hope we'll get more balance of nominees between people who have been on the prosecution side as well as the defense side," she said.

Lingle this month appointed Dr. Philip Hellreich, a political ally, to the commission for a six-year term. She is scheduled to make another appointment to the commission in 2005.

The governor is allowed to appoint two members of the commission; the House speaker and the Senate president each appoint two members, the Hawai'i State Bar Association elects two and the chief justice appoints one.

The judiciary is also asking for two additional judge positions at the Intermediate Court of Appeals. Granting those positions would present more appointment opportunities for Lingle.